Matter of Ericson
Annotate this CaseDecided on August 8, 2011
Sur Ct, Sullivan County
In the Matter of the Petition of Nelle J. Ericson, for an Order Determining the Validity and Enforceability of a Claim Against the Estate of ESKIL A. ERICSON, Decedent; the ESKIL A. ERICSON Living Trust; ESKIL A . ERICSON as Trustee of the ESKIL A. ERICSON Living Trust; MARCIA ERICSON, Individually; MARCIA ERICSON, as the Administratrix of the Estate of ESKIL A. ERICSON; The MARCIA ERICSON Living Trust; MARCIA ERICSON as Trustee of the MARCIA ERICSON Living Trust,
2009-141
Eisenberg & Kirsch
P.O. Box 715
Liberty, New York 12754
By: Michael D. Wolff, Esq., of counsel
Attorneys for Petitioner Nellie J. Ericson
Rosenwasser Law P.C.
P.O. Box 69
Montgomery, New York 12549
By: Stewart A. Rosenwasser, Esq.
Attorney for Respondents
Frank J. LaBuda, J.
The petitioner moves for an order pursuant to CPLR 3124 and CPLR § 3126 to compel the respondents to comply with petitioner's outstanding discovery demands and/or preclude the respondents from offering proof at trial for those items they have failed to provide in response to petitioner's demands. The respondents oppose the motion and cross-move for leave to amend the answer of the Estate and for a protective order. The petitioner opposes the cross-motion. [*2]
Eskil A. Ericson died a resident of Sullivan County, New York on June 7, 2009 leaving his wife, Marcia Ericson and son, Eric Finn Ericson surviving. On June 29, 2009, Marcia Ericson filed a SCPA Article 13 Small Estate proceeding with the Sullivan County Surrogate Court requesting that she be named the Voluntary Administratrix of her husband's estate. On July 1, 2009, Marcia Ericson was appointed Voluntary Administratrix.
The petitioner, Nelle J. Ericson was married to the decedent in 1976. The parties separated and executed a Separation Agreement in October 1992. On March 4, 1994, the parties entered into a Stipulation of Settlement. The Stipulation required the decedent to pay the petitioner the sum of $1,350.00 per month for maintenance and upon decedents' death, the payment became an obligation of his Estate. The decedent was also required to bequeath the sum of $200,000.00 to the petitioner by his Last Will and Testament. During a divorce hearing on July 25, 2002, the decedent agreed on the record to increase the monthly maintenance to $1,450 and acknowledged that he would leave the petitioner $200,000.00 by his Last Will and Testament. On September 25, 2002, a Judgment of Divorce was entered in the Nassau County Clerk's Office. The terms of the Separation Agreement and subsequent amendments were to survive the Judgment of Divorce.
Upon decedent's death, June 7, 2009, the petitioner claims she did not receive the monthly maintenance. On July 30, 2009, the petitioner served a Notice of Claim against the estate pursuant to SCPA § 1803 seeking the monthly maintenance and the sum of $200,000.00. On September 24, 2009, the Voluntary Administratrix rejected the claim pursuant to SCPA § 1806.
A petition was filed by the petitioner on December 21, 2009 and citation was issued to the Voluntary Administratrix on January 4, 2010. On February 2, 2010, the Voluntary Administratrix served an Answer on behalf of the Estate.
Thereafter, the parties commenced discovery and served various discovery demands. A conference was held regarding discovery and this Court "So Ordered" two letters pertaining to discovery on February 18, 2020 and March 8, 2010. The Court also signed an Order dated June 30, 2010 directing the parties to comply with the two discovery letter orders by July 29, 2010.
On December 27, 2010, the petitioner filed an Amended Petition and an Amended Citation. On February 10, 2011, the Voluntary Administratrix served an Amended Answer.
Petitioner now moves for an order compelling the respondents to comply with outstanding discovery demands. Petitioner maintains she served a Notice to Produce and Demands for Bills of Particulars on all respondents on February 22, 2011 and March 1, 2011. The petitioner claims she has had no reply to her demands.
The respondents claim the demands sought by the petitioner constitute a fishing expedition. The respondent alleges the court lacks jurisdiction to order discovery of information [*3]pertaining to Marcia Ericson individually or her trust. Respondents maintain they have provided the petitioner with all of the information regarding the decedent's assets along with prior transfers. Respondents contend the discovery requests are overbroad and fail to seek documents with particularity. Respondents also seek to amend their answer to allege an affirmative defense of lack of subject matter jurisdiction.
Respondents' motion for a protective order pursuant to CPLR § 3122 must be denied as untimely. CPLR § 3122 requires that within twenty days after receipt of a discovery notice, the objectant "must serve a response which shall state with reasonable particularity the reasons for each objection." The court notes petitioner served her discovery demands on February 22, 2011 and March 1, 2011. Respondents have not raised their objections until July 8, 2011 well outside the twenty day period. Failure to object to a discovery demand within twenty days as required by CPLR 3122 limits the Court's review to whether the material is privileged. See, CPLR § 3101(b); Anonymous v. High School for Environmental Studies, 32 AD3d 353 (1st Dept. 2006). The respondents never asserted a claim of privilege and failed to comply with any part of CPLR 3122. Nab-Tern-Betts v. City of New York, 209 AD2d 223 (1st Dept. 1994).
Pursuant to CPLR 3124, it is well established that disclosure provisions are to be liberally construed and a trial court is afforded broad discretion in managing disclosure. American Association of Bioanalysts v. New York State Department of Health, 12 AD3d 868 (3rd Dept. 2004); Kavanagh v. Ogden Allied Maintenance Corp., 92 NY2d 952 (1998). CPLR § 3101(a) requires full disclosure of all evidence material and necessary for the prosecution or defense of an action, regardless of the burden of proof. Weber v. Ryder TRS, Inc., 49 AD3d 865 (2nd Dept. 2008); Allen v. Crowell-Collier Pub. Co., 21 NY2d 403 (1968).
CPLR § 3126 authorizes the court to fashion an appropriate remedy, the nature and degree of which is a matter committed to the court's sound discretion and will not be disturbed absent a clear abuse of the court's discretion. Kumar v. Kumar, 63 AD3d 1246 (3rd Dept. 2009). CPLR § 3126 provides various sanctions for violations of discovery orders, the most serious of which are striking a party's pleadings or outright dismissal of the action. Corsini v. U-Haul Int'l, 212 AD2d 288 (1st Dept. 1995) lv dismissed 87 NY2d 965 (1996). Although Supreme Court has broad discretion in fashioning a remedy for failure to comply with discovery requests Zeltz v. Wetanson, 67 NY2d 711 (1986), the dismissal of the pleading is a harsh remedy and is proper only where the party's failure to comply can be characterized as willful and contumacious. Sawh v. Bridges, 120 AD2d 74 (2nd Dept. 1986) appeal dismissed 69 NY2d 852 (1987).
The motion to compel discovery pursuant to CPLR 3124 is granted. Surrogate Court did not abuse its discretion by allowing discovery "of all material within the possession or control of a fiduciary as an aid to valuation of estate assets." In re Estate of Quandt, 175 AD2d 433 (3rd Dept. 1991).
In furtherance of the policy of favoring the resolution of actions on the merits, Corners [*4]Realty 30/7, Inc. v. Bernstein Management Corp., 249 AD2d 191 (1st Dept. 1998), this Court directs the respondents to serve the requested outstanding discovery within 30 days from the date of this Decision and Order.
Failure to timely comply with the remaining discovery, will allow this Court to entertain all motions for preclusion, for the striking of the pleadings, the dismissal of the action, rendering a judgment by default against the disobedient party and the imposition of sanctions. See, CPLR § 3126. Discretion in compelling compliance and imposing penalties for noncompliance in discovery matters is soundly vested in the trial court. Ireland v. Geico Corp., 2 AD3d 917 (3rd Dept. 2003); Associated Mut. Ins. Co. v. Dyland Tavern, Inc., 105 AD2d 892 (3rd Dept. 1984).
Leave to amend a pleading rests within the trial court's discretion and should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit. See, CPLR 3025; Moon v. Clear Channel Communications, Inc., 307 AD2d 628 (3rd Dept. 2003).
Whether to grant or deny leave to amend is committed to the Supreme Court's discretion to be determined on a case by case basis. See, CPLR 3025(b); Edenwald Contr. Co. v. City of New York, 60 NY2d 957 (1983). In exercising its discretion, the court will consider how long the amending party was aware of the facts upon which the motion was predicated, and whether a reasonable excuse for the delay is offered. Caruso v. Anpro, Ltd., 215 AD2d 713 (2nd Dept. 1995). Leave to amend may be denied where the opposing party has been or would be prejudiced by a delay in seeking the amendment. Fahey v. County of Ontario, 44 NY2d 934 (1978).
Respondents' motion to amend its Answer to assert an affirmative defense is granted as the petitioner has not demonstrated she would sustain any prejudice.
Based upon the above, it is
ORDERED, that petitioner's motion to compel pursuant to CPLR 3124 and CPLR § 3126 is granted, and it is further
ORDERED, that respondents' motion for a protective corder pursuant to CPLR § 3122 is denied, and it is further
ORDERED, that respondents' motion to amend its Answer pursuant to CPLR 3025 is granted.
This shall constitute the Decision and Order of this Court.
DATED: August 8, 2011 [*5]
Monticello, New York
Hon. Frank J. LaBuda,
Surrogate
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